Fighting words to FunnyJunk lawyer: The Oatmeal will not cave

Last week we saw Matthew Inman’s response to the legal threat of defamation by FunnyJunk attorney Charles Carreon by mocking his demand for $20,000 and starting a fundraising effort – not to pay the legal fees but to instead raise $20,000 for the National Wildlife Federation and the American Cancer Society. To date, Matthew has raised $180,000 with a week left in the campaign.

This week we have the legal response from Matthew’s lawyer that rebuffs FunnyJunk’s claims and suggests that if FunnyJunk sues The Oatmeal that a counter suit would be expected stating, “The Oatmeal will explore the possibility of asserting claims for copyright infringement against FunnyJunk.”

Here are some of the cherry sections:

There are two simple reasons why FunnyJunk’s claims under the Lanham Act are untenable. First, the Blog Post is not commercial advertising or promotion. See New.Net, Inc. v. Lavasoft, 356 F. Supp. 2d 1090, 1111 (C.D. Cal. 2004); Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1017 (9th Cir. 2004).

Rather, the Blog Post expresses The Oatmeal’s legitimate concerns about vast quantities of his content being misappropriated, and the frustration and difficulty in policing online copyright infringement. Second, the parties are not in competition with each other. FunnyJunk runs a site that reproduces user generated content. The Oatmeal, on the other hand, publishes his own, originally produced content. Rather than forming the basis of a claim under the Lanham Act, The Oatmeal’s Blog Post is a commentary on copyright issues and FunnyJunk’s business model, and is entitled to “full First Amendment protection.” Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 903 (9th Cir. 2002). Given The Oatmeal’s status as an artist and a commentator, courts will be particularly sensitive to First Amendment concerns in this context.

As your client should know, the internet does not like censorship, and does not react kindly to it. Bringing a lawsuit against The Oatmeal is ill advised. Not only are FunnyJunk’s claims meritless, FunnyJunk will surely lose in the court of public opinion and cause itself reputational harm. We are also deeply skeptical that a nameless, faceless, business that hosts third party content will be able to demonstrate much if anything by way of damages as a result of The Oatmeal’s allegedly defamatory statements. At the end of the day, a lawsuit against The Oatmeal in this situation is just a really bad idea.

The Oatmeal wrote a blog post complaining about his content being made available onFunnyJunk. There is no dispute that large quantities of his content were indeed available via FunnyJunk. To the extent FunnyJunk wishes to make clear that it has removed The Oatmeal’s content and that it should not be held responsible for the availability of this content on its site, it has an easy avenue to do so: FunnyJunk can publish a statement or a blog post to this effect.This would be the appropriate and First Amendment-friendly course of action for a website (that presumably shares the free speech concerns of the internet at large). In any event,FunnyJunk’s claims are meritless, and The Oatmeal will prevail in any litigation involving FunnyJunk’s threatened claims.To be clear, The Oatmeal will not cave in to FunnyJunk’s attempts to censor him through legal threats and bullying. He has posted a response separately.

You can read the full response here:

FunnyJunk — The Oatmeal Response

For more background on this case, visit:
Lawyer Demands the Oatmeal Pay Him $20K Not to Sue Him and
Funnyjunk Lawyer Shocked by the Oatmeal Response